Firefighter claims First Amendment protects social media post

A firefighter sued the Houston Fire Department after he was transferred and suspended as the result of a post he made on social media. The post was made in a private group for HFD firefighters. While discussing a transfer opportunity HFD had posted, he wrote "if you are thinking about putting in for a spot in District 64 on C-shift you better have your sh** together. Wanna play games like previously-assigned members? You will be miserable...promise."

HFD's transfer guidelines prohibit firefighters from communicating with each other to influence or discourage each other from applying for a posted or anticipated vacancy. When the assistant fire chief saw the post, the firefighter was transferred to an administrative position in another district and suspended for three days, although the suspension was later reduced to one day. The reason given for the transfer was "social media posts meant to discourage members from transferring to their district compromises the integrity of the HFD transfer policy."

The firefighter argued that HFD's actions in transferring and suspending him were a violation of his First Amendment right to free speech. The district court dismissed his lawsuit and he appealed.

In reviewing his appeal, the court of appeals noted that public employees (including teachers) do not surrender all of their First Amendment rights by reason of their employment. The First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing "matters of public concern." A public employer (including a school district) can adopt policies restricting its employees from speaking on issues that are not of public concern as long as those policies do not restrict other, protected speech. The court then looked at what kind of speech is protected as a "matter of public concern." A public employee is engaging in protected speech when the speech can be fairly considered as relating to a matter of political, social, or other concern to the community, or when it is the subject of a legitimate news interest. For example, a teacher's letter to the editor of a local newspaper concerning a school budget is protected speech on a matter of public concern.

In this case, the court held that the firefighter's post did not address a matter of public concern. As evidenced by the fact that it was posted in a private group for HFD firefighters, the comment on potential transferees' applications to a particular HFD district was relevant only to HFD employees who might have been requesting a transfer, not to the public generally. The fire department could therefore restrict the speech and take disciplinary action when such speech violated HFD's policies. The court of appeals upheld the district court's dismissal of the lawsuit.